WASHINGTON — Diving into a contentious social issue, the Supreme Court on Tuesday considers whether states can ban transgender athletes from taking part in girls’ and women’s school and college sports.
The court, which has a 6-3 conservative majority, will hear oral arguments in separate cases involving two transgender students, Becky Pepper-Jackson and Lindsay Hecox, who challenged state bans in West Virginia and Idaho, respectively.
Both won lower court injunctions that allowed them to continue to compete in sports.
Pepper-Jackson, a 15-year-old high school sophomore, has taken puberty blocking medication and estrogen and competed in cross-country, shot put and discus.
The West Virginia law would ban Pepper-Jackson from competing for her school “as the girl I am and the girl I’ve always known myself to be,” she said in a video message shared by her lawyers.
“I play for my school the same reason other kids on my track team do: to make friends, have fun and challenge myself through practice and teamwork. And all I’ve ever wanted is the same opportunities as my peers,” she added.
Hecox, a 25-year-old college student, has received testosterone suppression and estrogen treatments. She unsuccessfully tried out for track and cross-country teams in college and has since participated in running and club soccer.
An additional wrinkle in Hecox’s case is that she is no longer competing in any sports covered by the ban and wants to drop out of the case, in part, because of the public scrutiny.
The court is tackling two related legal questions: whether such laws violate the 14th Amendment to the Constitution, which requires that the law apply equally to everyone, or Title IX of the Education Amendments of 1972, which prohibits sex discrimination in education.
The eventual ruling is likely to have nationwide implications, not just for the 25 other states with similar bans, but potentially for other policies that affect transgender people, such as restroom access.
The states argue that the laws do not discriminate on the basis of transgender status but are instead a legitimate “sex-based classification” that is allowed under Title IX to protect girls and women.
It reflects the fact that, as Idaho’s lawyers put it in court papers, “men are faster, stronger, bigger, more muscular, and have more explosive power than women.”
In response, Pepper-Jackson’s lawyers argued in court papers that because she transitioned early and never experienced male puberty, there’s no evidence she gained a physical advantage in sports. Pepper-Jackson is also the only student in the entire state that the law is thought to currently apply to, they added.
The court’s conservative majority delivered a major blow to transgender rights last year when it upheld a Tennessee law that bans gender transition care for minors.
It also delivered further losses by allowing President Donald Trump this term to bar transgender people from the military and restrict gender designations on passports.
Earlier, in 2020, the court surprisingly ruled that Title VII, the federal law prohibiting discrimination in employment, applies to gender identity as well as sexual orientation.
One of the key issues heading into Tuesday’s oral argument is whether two conservative justices in the majority in that Title VII case — Chief Justice John Roberts and Justice Neil Gorsuch — feel the same way about the similar language in Title IX.
Some sports organizations, including the National Collegiate Athletic Association and the U.S. Olympic and Paralympic Committee, have already imposed new restrictions on transgender athletes.
Trump, an outspoken opponent of transgender rights, issued an executive order soon after taking office last year titled “Keeping Men Out of Women’s Sports,” and his administration has sided with the states in the Supreme Court case.
“I think people have come to understand the danger to women’s sports that not acting in the way that our Legislature did poses,” West Virginia Attorney General JB McCuskey, a Republican, said in an interview.
“For us, the thrust and focus of the arguments is that both Title IX and the equal protection clause and common sense dictate that this is a law that is constitutional and legal, and that it is well within the legislatures of this country’s purview to regulate sports based on immutable physical biological characteristics,” he added.
The West Virginia law, enacted in 2021, says gender is “based solely on the individual’s reproductive biology and genetics at birth.” As such, it says, a female is a person “whose biological sex determined at birth as female.”
The Idaho law, passed a year earlier, states that sports “designated for females, women, or girls should not be open to students of the male sex.”
